Three-Month Waiver in Response to the Economic Consequences of the COVID-19 Public Health Emergency

To Relieve Employers of Commercial Motor Vehicle Drivers Subject to 49 CFR Part 382 from Certain Pre-Employment Testing Requirements

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA grants a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery, issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019 (COVID-19) public health emergency.

DATES: This waiver is effective June 5, 2020, and ends on September 30, 2020.

FOR FURTHER INFORMATION CONTACT:  Mr. David J. Yessen, Chief of the Compliance Division, Office of Enforcement and Compliance, 202-366-1812, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of Transportation (the Secretary) authority to grant waivers from any of the Federal Motor Carrier Safety Regulations issued under Chapter 313 of Title 49 of the United States Code or 49 U.S.C. § 31136, to a person(s) seeking regulatory relief (49 U.S.C. §§ 31136(e), 31315(a)). The Secretary must make a determination that the waiver is in the public interest and that it is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver. Individual waivers may be granted for a specific unique event for a period up to three months. TEA-21 authorizes the Secretary to grant waivers without requesting public comment, and without providing public notice.

The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313, relating to commercial motor vehicle operators, and 49 U.S.C. chapter 311, subchapter I and III, relating to commercial motor vehicle programs and safety regulations.

Background
On May 19, 2020, the President issued Executive Order No. 13924 setting forth “the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” Among other things, the Executive Order directed executive branch agencies to “address this economic emergency by … waiving [] or providing exemptions from regulations and other requirements that may inhibit economic recovery consistent with applicable law and with protection of the public health and safety ….” This waiver responds to the unique circumstances of certain pre-employment testing requirements arising from the economic emergency identified in the President’s Executive Order, as further described below.

Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions, as defined in 49 CFR 382.107, resulting in their removal from the random pool for controlled substances and alcohol testing for a period greater than 30 days. As employers begin calling these drivers back to work, they will incur the cost of conducting pre-employment controlled substances testing before using these drivers to perform safety-sensitive functions, as required by 49 CFR 382.301. The administrative and cost burdens of pre-employment testing for furloughed drivers outside the random testing pool for more than 30 days falls on motor carrier employers at the very time they are attempting to return to expanded levels of operation. The Agency finds that temporary regulatory relief from this burden will aid in the economic recovery of motor carriers impacted by the COVID-19 public health emergency, without negatively impacting safety. FMCSA also concludes that this waiver will aid in the Nation’s overall economic recovery by enabling the efficient resumption of the transportation of people and cargo throughout the United States.

FMCSA’s Determination and Regulatory Provisions Waived
Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, until September 30, 2020, limited in scope and circumstances, that is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safety-sensitive functions for an employer, the driver must undergo pre-employment testing for controlled substances and the employer must receive a verified negative controlled substances test result for that driver from a medical review officer or a consortium/third party administrator.  This requirement also applies each time a driver returns to work after a furlough, lay-off, or other period of unemployment when the driver does not continue to be subject to random controlled substances testing in accordance with 49 CFR 382.305.

Section 382.301(b) provides an exception allowing an employer to forgo administration of a pre-employment test if the driver has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while participating in that program, the driver either: (i) was tested for controlled substances within the past 6 months or (ii) participated in the random controlled substances testing program for the previous 12 months. In addition, under the exception, the employer would be required to ensure that no prior employer of the driver has records of a violation of 49 CFR part 382 or the controlled substances use rule of another DOT agency within the previous six months.

As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.

This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.

Public Interest
FMCSA finds that the granting of this waiver is in the public interest because it will facilitate the efficient return of furloughed commercial motor vehicle drivers to the workforce, allowing them to resume critical transportation functions performed by passenger and property motor carriers. In addition, this waiver will reduce the regulatory burden on employers and furloughed drivers subject to the pre-employment testing requirement.

Safety Equivalency 
Due to the limited scope of this waiver and the ample precautions that remain in place, FMCSA has determined that the waiver is likely to achieve a level of safety that is equivalent to the level of safety that would be obtained absent the waiver. The waiver of a particular regulation should not be looked at in isolation but rather as part of the whole of all regulations governing the safety of drivers. Waiver determinations are made holistically, taking all relevant factors into account. See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). For example, in these circumstances, it is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).

Section 382.301(b) sets forth the following conditions a driver must meet to be excepted from pre-employment testing:

(1) The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of [part 382] or the controlled substances use rule of another DOT agency within the previous six months.
FMCSA finds that extending the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b)(1), from 30 to 90 days, will not negatively impact safety. The existing requirement that an employer relying on the § 382.301(b) exception must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months remains in effect. Moreover, employers must conduct a pre-employment query of the Clearinghouse for returning drivers, as required by § 382.701(a). The Clearinghouse, which became operational on January 6, 2020, enables employers to identify drivers, including furloughed drivers, who have committed an FMCSA controlled substances and alcohol testing program violation that renders them ineligible to perform safety-sensitive functions. Such drivers are prohibited from performing safety-sensitive functions until completing the return-to-duty process, as set forth in 49 CFR part 40, subpart O. The Clearinghouse provides employers with a useful new tool for identifying drivers’ drug and alcohol program violations that did not exist at the time the Agency enacted the 30-day limit for the exception in § 382.301(b). Further, employers must continue to complete a background investigation on returning or prospective drivers’ controlled substances and alcohol testing history with all DOT-regulated employers that employed the driver within the previous 3 years, in accordance with 49 CFR §§ 40.25, 382.413, and 391.23.

FMCSA believes that the current regulatory framework, as well as the additional measures listed below under Terms, Conditions, and Restrictions of the Waiver, taken collectively, provide the assurance needed to meet the legal standard that granting the waiver is likely to achieve an “equivalent level of safety.” Therefore, FMCSA has determined that extending from 30 to 90 days the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b) during the period of the waiver is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Unique Circumstances
The COVID-19 public health emergency has led to unprecedented impacts to the Nation’s economy. Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions. FMCSA finds that the circumstances surrounding this waiver are unique due to the urgent need to remove regulatory barriers to allow the efficient resumption of motor carrier operations.

For the reasons noted, FMCSA grants a three-month waiver as provided above, subject to the terms, conditions, and restrictions below.

Terms, Conditions, and Restrictions of the Waiver
This waiver covers employers of drivers subject to the requirements of 49 CFR part 382 for the period beginning at 12:01 a.m. (ET) on June 5, 2020, and continuing through 11:59 p.m. on September 30, 2020.

(1)    Employers must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months;
(2)    Employers must comply with the Clearinghouse pre-employment query requirement set forth in 49 CFR 382.701(a);
(3)    Employers must not allow a driver to perform any safety-sensitive function if the results of a Clearinghouse pre-employment query demonstrate that the driver is prohibited from doing so, in accordance with 49 CFR 382.701(d);
(4)    Employers must complete the investigations and inquiries required by 49 CFR §§ 40.25, 382.413, and 391.23;
(5)    Accident Notification. Each employer must notify FMCSA within 5 business days of an accident (as defined in 49 CFR 390.5), involving any driver operating under the terms of this waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry). Notification shall be by email to MCPSD@DOT.GOV. The notification must specify that the driver was operating under the terms of this waiver and must include the following information:

i.    Date of the accident;
ii.    City or town, and State in which the accident occurred, or closest to the accident scene;
iii.    Driver’s name and license number;
iv.    Vehicle number and State license number;
v.    Number of individuals suffering physical injury;
vi.    Number of fatalities;
vii.    The police-reported cause of the accident (if available at time of the report); and
viii.    Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations; and

(6)    FMCSA reserves the right to revoke this waiver due to drivers’ involvement in accidents or employers’ failure to comply with the terms of this waiver.

Jim Mullen
Deputy Administrator

Original Source: Federal Motor Carrier Safety Administration

ODAPC and CBD Notice

DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. **i
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance

 


i* What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD: The FDA is working to answer questions about the science, safety, and quality of products containing cannabis and cannabis-derived compounds, particularly CBD.” – https://www.fda.gov/consumers/consumer-updates/what-you-need-know-and-what-were-working-find-out-about-products-containing-cannabis-or-cannabis

** https://www.fda.gov/news-events/public-health-focus/warning-letters-and-test-results-cannabidiol-related-products

notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.

FMCSA Clearinghouse Mandate

Commercial Driver’s License Drug and Alcohol Clearinghouse

The Clearinghouse will improve highway safety by helping employers, FMCSA, State Driver Licensing Agencies, and State law enforcement to quickly and efficiently identify drivers who are not legally permitted to operate commercial motor vehicles (CMVs) due to drug and alcohol program violations. This secure online database will provide access to real-time information, ensuring that drivers committing these violations complete the necessary steps before getting back behind the wheel, or performing any other safety-sensitive function.

Mandate goes into effect January 6, 2020.

More information

Should I be worried about fentanyl?

Cocaine vs Fentanyl
Two viles showing the amount of heroin and the amount of Fentanyl that can be fatal if ingested.

The opioid epidemic may be getting even more deadly, due to wider availability of the drug

Fentanyl is a highly addictive synthetic opioid 50 to 100 times more potent than morphine and 50 times more potent than heroin. The pharmaceutical drug is manufactured for pain management; however, clandestine laboratories also produce the drug and mix in heroin sometimes referred to as Apace, China Girl, Dance Fever, or He-Man, the deadly cocktail has infiltrated our streets, neighborhoods, and workplaces1.

According to a recently published report from the CDC’s National Vital Statistics System, between 2011 and 2016, fentanyl was among the top 10 drugs most frequently involved in deaths from drug overdose. According to the report:

  • Oxycodone held the top spot for fatal overdoses in 20112
  • Heroin reigned as the number one culprit for overdoses from 2011 to 20152
  • Overdose deaths from fentanyl surpassed both oxycodone and heroin starting in 20162

Today, fentanyl continues to play a significant role in drug overdose deaths in the US, with large-scales manufacturing and smuggling into the country of serious concern. On January 31of this year, the US Customs and Border Protection announced the biggest-ever fentanyl bust in history3. Officials in Arizona seized more than 254 pounds fentanyl coming across the border from Mexico in a produce truck.

Sadly, according to the CDC, more than 28,000 deaths were directly attributed to synthetic opioids in 20174. Additionally, deaths from synthetic opioids significantly increased in 23 states and Washington D.C. from 2016 – 2017, with West Virginia, Ohio, and New Hampshire with the highest synthetic opioid related death rates4.

More overdose deaths in the US are linked to fentanyl than any other drug1. As illicit manufacturing continues, increased public education and awareness will be increasingly important in stopping fentanyl’s deadly effects.

[ Article from Quest Diagnostics ]


Sources:

1Fentanyl. National Institute on Drug Abuse https://www.drugabuse.gov/drugs-abuse/fentanyl

2National Vital Statistics Report https://www.cdc.gov/nchs/data/nvsr/nvsr67/nvsr67_09-508.pdf

3US border officers make largest-ever fentanyl bust https://www.washingtonpost.com/world/national-security/us-border-officials-announce-largest-ever-fentanyl-seizure/2019/01/31/a43eeb62-258c-11e9-90cd-dedb0c92dc17_story.html?noredirect=on&utm_term=.012d6dd66807

4Centers for Disease Control and Prevention “Sythetic Opioid Overdose Data” https://www.cdc.gov/drugoverdose/data/fentanyl.html

Over 10 million served

We are very excited and proud to announce.

Today we published the first-ever analysis of industry-specific data from more than ten million urine drug test results performed by Quest Diagnostics. USA Today covered this story as an exclusive in its Money Section with an interactive chart for featuring 3 years of Quest Diagnostics data. Below are some links and resources about the news release. This reinforces our thought leadership position in our industry, the value of insights provided by our laboratories, and our strong brand.

A special shout out to the data team for their amazing efforts: Dr. Barry Sample, Ashlyn Hazard, Priscilla Ku, Tito Gutierrez, and Aaron Atkinson and the greater DTI team of Kim Gorode (Corporate PR), Dr. Kim Samano, and Bonnie Bush.

USA TODAY EXCLUSIVE: Retail workers tested positive for drugs at the highest rate last year, Quest study shows

Webpage with full press release and infographics

Brochure download

Blog – First-ever analysis of industry-specific drug testing data

Key headlines:

  • Drug use by the U.S. workforce increased each year — and by double-digits over two years — between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed
  • Five sectors experienced year-over-year increases with a double-digit increase in their positivity rates between 2015 and 2017: Transportation and Warehousing (21.4%); Other Services (Except Public Administration) (15.4%); Finance and Insurance (13%); Retail Trade (12.8%); and Wholesale Trade (11.8%).
  • Retail heads list of industries with highest overall positivity
  • Cocaine positivity increases 43% in Retail, more than twice the increase of the general U.S. workforceAuthored by Russ Smith, Quest Diagnostics

Authored by Russ Smith of Quest Diagnostics

Drugs and Alcohol in the Workplace

Alcohol and drug use among employees and their family members can be an expensive problem for business and industry, with issues ranging from lost productivity, absenteeism, injuries, fatalities, theft and low employee morale, to an increase in health care, legal liabilities and workers’ compensation costs.

The impact of alcoholism and drug dependence in the workplace often focuses on four major issues:

  • Premature death/fatal accidents
  • Injuries/accident rates
  • Absenteeism/extra sick leave
  • Loss of production

Additional problem areas can include:

  • Tardiness/sleeping on the job
  • After-effects of substance use (hangover, withdrawal) affecting job performance
  • Poor decision making
  • Loss of efficiency
  • Theft
  • Lower morale of co-workers
  • Increased likelihood of having trouble with co-workers/supervisors or tasks
  • Preoccupation with obtaining and using substances while at work, interfering with attention and concentration
  • Illegal activities at work including selling illicit drugs to other employees
  • Higher turnover
  • Training of new employees
  • Disciplinary procedures

In addition, family members living with someone’s alcoholism or drug use may also suffer significant job performance related problems — including absenteeism, lack of focus, increased health-related problems and use of health insurance.

Alcohol Use

Two specific kinds of drinking behavior significantly contribute to the level of work-performance problems: drinking right before or during working hours (including drinking at lunch and at company functions), and heavy drinking the night before that causes hangovers during work the next day.

And it isn’t just alcoholics who can generate problems in the workplace. Research has shown that the majority of alcohol-related work-performance problems are associated with nondependent drinkers who may occasionally drink too much — not exclusively by alcohol-dependent employees.

While alcoholism can affect any industry and any organization, big or small, workplace alcoholism is especially prevalent in these particular industries:

  • Food service
  • Construction
  • Mining and Drilling
  • Excavation
  • Installation, maintenance and repair

Prescription Drugs

There is always a level of risk when using any drug including prescription or over-the-counter medications.

Drug reactions vary from person to person. If you are taking a drug you haven’t had before, you won’t know how it will affect you. It’s important to follow your doctor’s advice when taking prescription drugs and discuss any side-effects and how this might impact on your work.

The effects of prescription drugs such as benzodiazepines (e.g. Xanax®) can have an impact on your work and you should discuss these with your doctor. Long term use in particular may become problematic.

What can the workplace do?

Work can be an important and effective place to address alcoholism and other drug issues by establishing or promoting programs focused on improving health. Many individuals and families face a host of difficulties closely associated with problem drinking and drug use, and these problems quite often spill over into the workplace. By encouraging and supporting treatment, employers can dramatically assist in reducing the negative impact of alcoholism and addiction in the workplace, while reducing their costs.

Without question, establishment of an Employee Assistance Program (EAP) is the most effective way to address alcohol and drug problems in the workplace. EAPs deal with all kinds of problems and provide short-term counseling, assessment, and referral of employees with alcohol and drug abuse problems, emotional and mental health problems, marital and family problems, financial problems, dependent care concerns, and other personal problems that can affect the employee’s work. This service is confidential. These programs are usually staffed by professional counselors and may be operated in-house with agency personnel, under a contract with other agencies or EAP providers, or a combination of the two.. Additionally, employers can address substance use and abuse in their employee population by: implementing drug-free workplace and other written substance abuse policies; offering health benefits that provide comprehensive coverage for substance use disorders, including aftercare and counseling; reducing stigma in the workplace; and educating employees about the health and productivity hazards of substance abuse through company wellness programs.

  • Research has demonstrated that alcohol and drug treatment pays for itself in reduced healthcare costs that begin as soon as people begin recovery.
  • Employers with successful EAP’s and DFWP’s report improvements in morale and productivity and decreases in absenteeism, accidents, downtime, turnover, and theft.
  • Employers with longstanding programs also report better health status among employees and family members and decreased use of medical benefits by these same groups.

Some facts about alcohol in the workplace:

  • Workers with alcohol problems were 2.7 times more likely than workers without drinking problems to have injury-related absences.
  • A hospital emergency department study showed that 35 percent of patients with an occupational injury were at-risk drinkers.
  • Breathalyzer tests detected alcohol in 16% of emergency room patients injured at work.
  • Analyses of workplace fatalities showed that at least 11% of the victims had been drinking.
  • Large federal surveys show that 24% of workers report drinking during the workday at least once in the past year.
  • One-fifth of workers and managers across a wide range of industries and company sizes report that a coworker’s on- or off-the-job drinking jeopardized their own productivity and safety.

Some facts about drugs in the workplace:

  • Workers who report having three or more jobs in the previous five years are about twice as likely to be current or past year users of illegal drugs as those who have had two or fewer jobs.
  • 70% of the estimated 14.8 million Americans who use illegal drugs are employed.
  • Marijuana is the most commonly used and abused illegal drug by employees, followed by cocaine, with prescription drug use steadily increasing.

Source: National Institute on Drug Abuse; National Institutes of Health; U.S. Department of Health and Human Services.

Emerging Trends and Alerts

New drugs and drug use trends often burst on the scene rapidly. NIDA’s National Drug Early Warning System (NDEWS) reports on emerging trends and patterns in many metropolitan areas and states. NDEWS builds on the work of the former Community Epidemiology Work Group (CEWG).


Loperamide Misuse/Abuse

Posted on June 09, 2016

Loperamide is an over-the-counter anti-diarrheal medication that is available in tablet, capsule, or liquid form under brand names such as Imodium, Kaopectate 1-D, Maalox Anti-Diarrheal, and Pepto Diarrhea Control. Because it acts at mu-opioid receptors, which regulate movement in the intestinal tract, it is an opioid medication, and there are reports of its being misused by drug users to stave off opioid withdrawal or possibly even to get high.

Misuse of loperamide has been reported since 2003; it is not common, but it has been reported all over the country. Nationwide, the number of calls to poison centers involving the intentional abuse or misuse of loperamide increased from 87 in 2010 to 190 in 2014 (AAPCC annual reports; http://www.aapcc.org/annual-reports/ ).

Effects of Loperamide

When taken as recommended, loperamide is designed not to enter the brain; but instructions available on the Internet purport to show how taking loperamide in very high quantities and combining it with other substances may help it produce psychoactive effects that resemble the euphoric effects of other opioids or that mitigate cravings and withdrawal symptoms.

Users’ reports of these effects effects (if any) are conflicting, but physical consequences of loperamide misuse may be severe, including fainting, abdominal pain, constipation, cardiovascular toxicity (including racing heart and even cardiac arrest), pupil dilation, and kidney failure from urinary retention. Anecdotes and case reports indicated that the potential harm is high.

There were also reports of opioid withdrawal symptoms when users stopped taking loperamide, including severe anxiety, vomiting, and diarrhea.

FDA issued a Safety Alert about Loperamide on 6/7/16: Loperamide (Imodium): Drug Safety Communication – Serious Heart Problems With High Doses From Abuse and Misuse

More information on loperamide is also availabe from the National Drug Early Warning System (NDEWS) .


Fake Prescription Drugs Laced with Fentanyl

Updated May 05, 2016

Media reports and official alerts in several U.S. communities (including Sacramento, CA and most recently, Carroll County, MD) are warning of counterfeit pain and anxiety medications that actually contain fentanyl, an extremely powerful, potentially deadly opioid. The pills, which are disguised as common prescription drugs like Norco (hydrocodone), Percocet (oxycodone), and Xanax (alprazolam), are responsible for a growing number of overdose deaths and non-fatal overdoses around the country. Fentanyl is 25 to 50 times stronger than heroin, so even a small amount can cause an overdose. (The Drug Enforcement Administration reports that some of these pills are manufactured in China and smuggled into the U.S. via Mexican drug cartels.)

The fake pills are much cheaper than the real versions. The public should be aware that drugs obtained on the street, even though they look like a real prescription pharmaceutical, may be deadly. It is always unsafe to take a prescription drug unless it comes from your own prescription and is dispensed by a reputable pharmacy.


Surge in Fentanyl Overdose Deaths

Posted on July 09, 2015

A surge in overdose deaths related to fentanyl, an opioid 30 to 50 times more potent than heroin, has prompted Baltimore health officials to launch a public health campaign to raise awareness among drug users. Hundreds of people have overdosed on fentanyl across the nation since 2013, often as a result of using heroin that has been laced with the much stronger substance. A quarter of drug overdose deaths in Maryland now involve fentanyl, up from 4 percent in 2013. Opioid overdose can stop a person’s respiration, and fentanyl can have this effect very quickly. Other parts of the country such as Detroit and surrounding suburbs are also seeing major surges in fentanyl use and fentanyl-related deaths. In some cases users are unknowingly taking fentanyl in what they believe to be pure heroin, but a growing number of opioid users are deliberately taking fentanyl.

Fentanyl and other opioid overdoses can be reversed if the drug naloxone (Narcan) is administered promptly. In a growing number of states, naloxone is being distributed to injection drug users and other laypersons to use in the event of overdose. For example, Baltimore’s Staying Alive Drug Overdose Prevention and Response plan issues naloxone and training in its use.


Increasing Overdoses From Synthetic Cannabinoids (“Spice,” “K2,” etc.) in Several States

Updated May 08, 2015

Recent surges in hospitalizations and calls to poison control centers linked to consumption of synthetic cannabinoid products–sold under brand names like “Spice,” “K2,” “No More Mr. Nice Guy,” and others–are being reported in several southern and northeastern U.S. states and have prompted officials to issue health warnings. After a surge in synthetic cannabinoid exposures and poison center calls in April and May, 2015, the Maryland Poison Center issued an urgent notice about the dangers of these drugs . New York Governor Andrew Cuomo issued an alert after more than 160 patients were hospitalized following synthetic cannabinoid use in under two weeks in mid April, 2015.

Synthetic cannabinoids are chemically related to THC, the active ingredient in marijuana, and are sometimes called “synthetic marijuana” or “legal marijuana,” but actually the effects can be considerably more powerful and more dangerous than marijuana. Users can experience anxiety and agitation, nausea and vomiting, high blood pressure, shaking and seizures, hallucinations and paranoia, and they may act violently.

The Maryland notice lists several chemical compounds in materials from crime labs, including MAB-/AB-CHMINACA, FUBINACA, FUB-PB-22, and XLR11. Besides the brand names above, the New York State health alert lists other common names: Blonde, Summit, Standard, Blaze, Red Dawn X, Citron, Green Giant, Smacked, Wicked X, AK-47; recent reports have involved products with the names Geeked Up, Ninja, Caution, Red Giant, and Keisha Kole.

For more information on synthetic cannabinoids, see DrugFacts: K2/Spice (“Synthetic Marijuana”)


U.S. and British Columbia Issue Alerts on Fentanyl

Updated March 18, 2015

The U.S. Drug Enforcement Agency (DEA) has issued a nationwide alert about the dangers of fentanyl and related compounds (fentanyl analogues). Fentanyl, an opioid that is 50-100 times more powerful than morphine, is both abused on its own and commonly added to heroin to increase its potency. Fentanyl and fentanyl-laced heroin have been a concern for over a decade and have caused numerous overdose deaths among injection drug users in several U.S. cities.

Heroin is not the only drug that can be laced with fentanyl, however. Officials in Vancouver, British Columbia, Canada, recently issued public warnings about a wide range of fentanyl-laced drugs causing overdose deaths among users. They warn that fentanyl is now being concealed in non-injection drugs, including oxycodone and various “party drugs” in powder or pill form, as well as in marijuana (although no deaths have been confirmed from fentanyl-laced marijuana). Because of this new threat, British Columbia officials are urging all recreational drug users to “know their source.”


HIV Outbreak in Indiana Linked to Abuse of Opana

Posted on February 27, 2015

Health officials in Indiana have announced a fast-spreading outbreak of new HIV cases in the southeastern portion of the state that are linked to injection drug abuse of the powerful prescription opioid painkiller Opana. Injecting drugs and sharing injection equipment is one of the main routes of transmitting HIV. Also, a few new HIV cases in southeastern Indiana were transmitted sexually.

Officials advise that people in southeastern Indiana who have engaged in needle sharing or unprotected sex should get tested for HIV and then re-tested after 2-3 months, as HIV may not appear on tests immediately when the virus is contracted. To reduce risk of contracting HIV, avoid injection drug use, sharing or re-using needles, and having unprotected sex or sex with commercial sex workers.

Source: National Institute on Drug Abuse; National Institutes of Health; U.S. Department of Health and Human Services.

New OSHA Accident Reporting Rules Knock Out Most Employer Mandatory Post-Accident Drug Policies

DOT, NRC and CG Mandatory Drug Testing Rules Exempt;
Effective Date of OSHA Rules: August 10, 2016
By Theodore F. Shults JD, MS

First, a good question is: How does a new rule requiring employer electronic reporting of accidents to OSHA end up prohibiting most private employer post-accident drug testing procedures and policies?

Many employer drug-testing policies mandate drug and alcohol testing in the wake of a workplace accident regardless of fault, cause or suspicion that the employee was impaired or was using drugs. These polices vary greatly and can in some situations be viewed as designed to chill an employer’s interest in reporting an on-the-job illness or injury. Some state laws and courts have addressed these issues by defining post-accident testing as requiring reasonable suspicion.

Now OSHA has chimed in with a comprehensive restriction on post-accident testing. Effective August 10, 2016, OSHA’s Final Rule on Electronic Reporting of Workplace Injuries requires employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.

Regardless of the merit of OSHA’s new restriction on post-accident testing, how does this happen? Well it helps that the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing. It is OSHA’s subsequent May 12, 2016 commentary accompanying the final rules that specifies that OSHA views mandatory post-accident testing as deterring the reporting of workplace safety incidents and that employers who continue to apply such policies will face enforcement scrutiny and serious penalties.

It is not a complete ban, but it might as well be. OSHA instructs employers to:

“limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

So which drug test does OSHA recommend that can accurately identify impairment by drug use (other than a breath alcohol test)? That guidance has not been provided.

Fortunately OSHA has spared mandatory federal and state testing programs.

State Workers’ Compensation Law and Federally Mandated Drug Testing

OSHA points out in its preamble to the final rule that a few commenters raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. To wit OSHA notes:

“This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4)”

I suspect that most law firms that provide employment guidance in states with voluntary drug testing rules are trying to figure out whether states with “voluntary drug-free workplace laws” are covered under the exemption of compliance with the state worker compensation law. It is worth noting that if an employer decides not to comply with the post-accident requirement of, for instance, Florida’s Drug-Free Workplace Act, they would lose the workers’ comp discount and legal protections the Act provides.

Fortunately, it is quite clear that compliance with the federal drug testing requirements of the DOT, CG and NRC preempt OSHA’s restriction on post-accident testing

NOTE: It is important to point out that the offending language in this final rule restricting post-accident testing is found in the rule’s preamble and not part of the black letter rule itself. Further, how OSHA will enforce the rule remains an open question, which will be reflected in its as yet unpublished enforcement guidance. Given the significance of this rule and the perfunctory opportunity provided to the industry to comment, as well as the fallout OSHA already is receiving, there is a reasonable chance that it may be rolled back or significantly amended.

Repost by permission from AAMRO, MRO ALERT publication